JOHN C. ANDERSON, APPELLANT,
v.
THE STATE OF FLORIDA, APPELLEE
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The appellate court modified a probation order, vacating the condition prohibiting gambling because there was no substantial record basis to support the enhancement of probation terms.
The court held that while a trial court can modify probation terms without an affidavit alleging a violation, such modification must have a substantial record basis, and absent that, it constitutes double jeopardy.
A defendant, placed on probation with a condition to enter drug rehabilitation, was granted permission to travel to New Jersey for rehab. The trial co…
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NESBITT, Judge.
The ¡defendant was charged in a three-count information with possession of cocaine, phencyclidine and less than twenty grams of cannabis. He entered a plea of nolo contendere to the possession of cocaine charge and the state announced a nolle prosequi on the other two counts. The trial court entered a finding of guilt, withheld adjudication of guilt, and placed the defendant on probation. The defendant appeals an order modifying the special conditions of his probation.
When the court placed the defendant on probation, it imposed a condition that he enter a drug rehabilitation program. The parties contemplated that he would enter a program in his home state of New Jersey. The defendant subsequently petitioned the trial court for permission to leave Dade County to go to New Jersey and enter a rehabilitation program there. The trial court granted this petition, but in doing so imposed the additional condition that the defendant not engage in any gambling activity while in New Jersey. The defendant is a professional gambler. Relying on Buckbee v. State, 378 So. 2d 39 (Fla. 3d DCA 1979), the defendant contends that, in the absence of an affidavit alleging a violation of the terms and conditions of probation, the trial court was without jurisdiction to enter the modification order. We recently overruled Buckbee in Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d DCA 1983), recognizing that an order aggravating the terms of probation does not raise a jurisdictional problem. Rather, when there is no record basis for modifying the terms of probation; doing so places the defendant in double jeopardy. Since there was no such substantial record basis to support the order enhancing the conditions of the defendant's probation, we vacate that portion of the order appealed from which prohibited Anderson from engaging in gambling activity.
Affirmed as modified.
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Citator
Cited By
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Lippman v. State, 633 So. 2d 1061 (Fla. 1994)…so, e.g., Clark v. State, 579 So. 2d 109 (Fla.1991) (increase of penalty from community control to residential custody); State v. Johnson, 483 So. 2d 420 (Fla.1986) (increase of penalty from 90 days incarceration to 13 years); cf. Anderson v. State, 444 So. 2d 1109, 1110 (Fla. 3d DCA 1984) (where no record basis for modification and modification deprived defendant of livelihood, modification placed defendant in double jeopardy). It is self-evident that the order prohibiting contact with the minor victim and m…
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Lippman v. State, 595 So. 2d 190 (Fla. 3d DCA 1992)…so, e.g., Clark v. State, 579 So. 2d 109 (Fla.1991) (increase of penalty from community control to residential custody); State v. Johnson, 483 So. 2d 420 (Fla.1986) (increase of penalty from 90 days incarceration to 13 years); cf. Anderson v. State, 444 So. 2d 1109, 1110 (Fla. 3d DCA 1984) [*194] (where no record basis for modification and modification deprived defendant of livelihood, modification placed defendant in double jeopardy). It is self-evident that the order prohibiting contact with the minor victi…
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J.C. Nickens v. State, 547 So. 2d 1289 (Fla. 4th DCA 1989)…routine maintenance. Specifically, the court determines that routine maintenance such as painting the house or mowing the lawn is an adjunct of residing at the residence and is therefore prohibited by the order of probation. In Anderson v. State, 444 So. 2d 1109 (Fla. 3d DCA 1984), the Third District Court of Appeal stated: We recently overruled Buckbee [Buckbee v. State, 378 So. 2d 39 (Fla. 3d DCA 1979) ] in Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d DCA 1983), recognizing that an order aggravating the…
Authorities Cited
- Gregorio Rodriguez v. State, 441 So. 2d 1129 (Fla. 3d DCA 1982)
- Buckbee v. State, 378 So. 2d 39 (Fla. 3d DCA 1979)